Jon Rowe has written a retraction of his charge that Herb Titus, former head of the Regent University law school, is a Christian reconstructionist. Titus took the time to write him directly and dispute that those are his views. The post caught my eye because I had conversations with Perry Willis, a frequent commenter here, and Jim Babka, the talk show host whose show I was on recently, about Titus. Both are friends with Titus, and his name came up in conversation with each of them, quite unconnected with each other and months apart. I told Perry months ago that I was under the same impression that Titus was a reconstructionist, but he told me that was not true, that Titus is more libertarian-leaning than I thought. Jon’s post garnered a response from Babka, and I commented as well.

While I take all of them at their word that Titus is not a reconstructionist, I still think he has some views that are decidedly non-libertarian and quite dangerous. For instance, he argues that the 14th amendment does not incorporate any of the bill of rights as binding on the states. Can you even imagine the authoritarian laws that would follow if that doctrine were accepted? He is also the author of the Constitution Restoration Act, which I consider to be a very dangerous piece of legislation that would break down the separation of powers purely for the cause of political demagoguery.

As a side note, I am always skeptical when I see someone describe themselves as a “constitutionalist”. The Constitution Party, headed by Howard Phillips, is anything but libertarian. They may talk like libertarians in their zeal against “big government”, but when it comes to individuals rights, they are enthusiastic supporters of “morals legislation” that intrudes on the private choices of consenting adults. They are strongly for anti-pornography laws and harshly anti-gay rights, including seeking to take away the court’s jurisdiction to overturn state sodomy laws. And in case after case, they are far more interested in the “rights” of states (which do not have rights, only authorities) than in the rights of individuals. Theirs is a distortion of the principles of freedom, despite their empty rhetoric.

Comments

Ah, but Titus has evidently used Rushdoony’s “Institutes of Biblical Law” and works by Gary North in his classes, and wrote an appendix for volume II of IoBL.

Chalcedon-style Theonomists adhere to a very specific form of postmillenialism that, as an exegesis, is very distinct from either traditional mainline views of the adventus, or from the literalist apocalypses of the “Left Behind” type. (See House and Ice’s excellent “Dominion Theology: Blessing or Curse?” for an overview of Rushdoony’s specific theological beliefs.)

However, one can adhere to many of Rushdoony’s prescriptions without agreeing with his doctrine of the Mosaic law being binding upon the Gentile nations, and I view many small-t theonomists as being in agreement with the Dominionists as to general public policy prescriptions without agreeing with their religious views. (The fact that, under a Dominion state, any non-Theonomist Christian would suffer stoning as punishment doesn’t seem to bother their various allies, such as the arch-conservative AAC.)

So, is Titus a Dominionist? Almost certainly not, because he doesn’t buy into their theological arguments. But he’s embraced them as very close allies, and even if he doesn’t advocate stoning gays, it’s a safe bet than an America run along Titus’ beliefs would be a very unfriendly place for a great many people.

So Titus claims the 14th Amendment does not do what it was designed to do?

He thinks the American Civil War didn’t happen? He’s had a dynamite ramming rod penetrate his brain, perhaps?

It’s sad enough that the 14th Amendment is necessary to make the Constitution apply to protect citizens, as the founders like Madison had intended all along. It’s worse that we had a nasty, bloody and destructive civil war over the issue.

Libertarians have a hard time aligning their views of a free society with the religious orientations/proscriptions of those that would be natural allies. Nor can they free themselves from imposing some taxes to pay for a security apparatus to insure the keeping of two Mosaic laws against stealing and murder. The question for me is how would their natural conservative alliance with reconstructionists continue if the following were to hold:

“The Christian goal for the world,” Recon theologian David Chilton has explained, is “the universal development of Biblical theocratic republics.” Scripturally based law would be enforced by the state with a stern rod in these republics. And not just any scriptural law, either, but a hardline-originalist version of Old Testament law–the point at which even most fundamentalists agree things start to get “scary.” American evangelicals have tended to hold that the bloodthirsty pre-Talmudic Mosaic code, with its quick resort to capital punishment, its flogging and stoning and countenancing of slavery, was mostly if not entirely superseded by the milder precepts of the New Testament (the “dispensationalist” view, as it’s called). Not so, say the Reconstructionists. They reckon only a relative few dietary and ritualistic observances were overthrown.

So when Exodus 21:15-17 prescribes that cursing or striking a parent is to be punished by execution, that’s fine with Gary North. “When people curse their parents, it unquestionably is a capital crime,” he writes. “The integrity of the family must be maintained by the threat of death.” Likewise with blasphemy, dealt with summarily in Leviticus 24:16: “And he that blasphemeth the name of the Lord, he shall surely be put to death, and all the congregation shall certainly stone him.”

Reconstructionists provide the most enthusiastic constituency for stoning since the Taliban seized Kabul. “Why stoning?” asks North. “There are many reasons. First, the implements of execution are available to everyone at virtually no cost.” Thrift and ubiquity aside, “executions are community projects–not with spectators who watch a professional executioner do `his’ duty, but rather with actual participants.” You might even say that like square dances or quilting bees, they represent the kind of hands-on neighborliness so often missed in this impersonal era. “That modern Christians never consider the possibility of the reintroduction of stoning for capital crimes,” North continues, “indicates how thoroughly humanistic concepts of punishment have influenced the thinking of Christians.”

Herb Titus is indeed a friend of mine, and has been a good partner on a number of projects. I don’t hold his Biblical literalism against him, and he doesn’t hold my atheism against me.

I have found few political issues where we disagree, but then there are a lot of issues we don’t discuss, not because we’ve avoided them, but because we’ve always been focused on some specific purpose when we get together, like campaign finance law, or a piece of legislation Downsize DC is submitting to Congress. So I don’t, for instance, know Herb’s stance on trade issues. I suspect that may be one area where he does not lean libertarian. But I don’t know for sure.

I know, of course, that he favors drugs laws, but I believe he thinks it should not be a federal issue. That would be an improvement over what we have now.

I disagree with Herb about the incorpation issue. But we work together on the many areas where we agree. I have found him to be intelligent, honest, helpful, and friendly.

I didn’t know for sure what Herb’s views were on Christian Reconstructionism or Dominionism, so I asked. He says he holds neither view. I don’t expect people who haven’t had personal experience with Herb to take my word for it, or his, but for me, Herb’s word has always been as good as gold. I could only wish for you the chance to have the pleasure of his company.

Thanks for posting this Perry. I think a distinction can be made between “state’s rights libertarians” and “individual rights libertarians” (Sandefur often refers to state’s rights libertarians as “doughface libertarians”), and it seems to me based on what little has been written here that perhaps Titus belongs in that category. I know this could be wrong, as I know little about him, but based upon what you’ve said and his brief in the McCreary case, it looks as though he thinks that the notion of “unalienable rights” only means they can’t be taken away by the federal government. I myself am an individual rights libertarian. I believe that states don’t have rights, people have rights, and that state governments, like all governments, are created to insure that the rights which precede its existence are secure. If a law banning sodomy between consenting adults, for example, is oppressive and violates our individual rights, then it matters not whether the government that is invading our private lives is seated in Lansing or in Washington. Unjust laws are unjust laws regardless of what level of government instituted them, and the principles of the Declaration apply just as strongly against state and local governments as against the federal government.

The entire point of the 14th amendment, according to the men who framed it, was to extend the guarantees found in the bill of rights and the Declaration to bind the states as well as the federal government. I would argue that, just like the amendments overturning slavery and giving women the right to vote, this was a necessary and inevitable step to extend the principles of the Declaration where they should have extended from the start. Those principles were far too limited when they applied only to white men and in order to fulfill the promise that all men are created equal and endowed with unalienable rights, it was imperative that we extend those privileges and immunities to blacks and to women. Without those things, the principles of the Declaration rang hollow. And the same is true of extending the limitations of government to the states with the 14th amendment. Without a binding and enforcable limitation on the ability of state government to violate the rights of the individual, all our talk of liberty was empty because it only protected liberty at the top level and left the states with the power to violate those rights that precede the institution of government. And I simply cannot include as a genuine libertarian one who believes that our liberties may be justly taken away as long as it’s done by the states and not the Federal government. Our rights are either unalienable, and no government may justly violate them, or our liberty is always in peril to the whims of state legislators.

I totally agree with you Ed. I support federalism only in that it limits majoritarianism and state power at any level. I balk at the idea that the only role of federalism is to push majoritarianism and state power down to a lower level. You put the issue well — individual rights are either inalienable or they are not. I think they are.

I certainly wouldn’t call Herb a libertarian. But I do call him libertarian leaning in the sense that modern conservatism seems to me to have abandoned the idea of any restraints on state power. That’s not true in Herb’s case. I would join with you in wishing that Herb would not allow to the states powers that, by right, do not belong to anyone. And I would wish that conservatives in general would rediscover the level of mistrust of state power that Herb still retains. And while I’m making wishes, I wish liberals would rediscover what liberalism was all about in the first place.

Recons often use libertarian rhetoric for populist appeal. For instance, Gary North recently argued that funding for research that touches on evolutionary theory should be stopped because the majority of Americans do not believe in evolution. Of course, if ever support for science became a majority position, it’s a fair bet that he’ll drop that particular argument.

I think a distinction can be made between “state’s rights libertarians” and “individual rights libertarians” (Sandefur often refers to state’s rights libertarians as “doughface libertarians”)…. Unjust laws are unjust laws regardless of what level of government instituted them, and the principles of the Declaration apply just as strongly against state and local governments as against the federal government.

Most of what I have seen on the Internet over the last 10 years or so from self-described “libertarians” is what you are describing as “states rights libertarians.” They don’t want the FedGov imposing on them, but they don’t mind the state or local governments imposing on other individuals. That has, quite frankly, made me very cynical about so-called libertarianism. As far as I’m concerned “states’ rights libertarians” aren’t “libertarian” at all. They just want to devolve to the original Articles of Confederation–let the states do what they want to do. If that’s the case, it’s a lie to suggest otherwise.

BTW, you’re right. States don’t have rights. States have powers–just like any governments. The only question is what powers the states have the right to exert. The whole point of the US constitution was to limit the powers that the states had the right to exert within their respective dominions. And the 14th amendment–ratified decades after the original constitution–was an important point in framing those limitations.